¶1concurring and dissenting.
¶2While I agree with the majority’s ultimate disposition of this case, I do not believe that appellant was denied cross-examination as guaranteed by the Federal and State Constitutions. Clearly, in this fact situation, appellant was afforded an opportunity to question the victim and did, in fact, question the victim. In the view of the position taken by the majority in Part VII, however, I concur in the judgment of the Court.
¶3Art. 38.071, § 2, V.A.C.C.P., violates the Due Process and Due Course of Law clauses of the Federal and State Constitutions when examined facially. The failure of the statute to specify when and by whom the child will be called for further testimony forces the accused to take the initiative in calling as a defense witness, a person whose testimony is likely to be adverse to his defense, thereby creating a Hobson’s choice. This forces the accused to, in effect, choose between his constitutional rights — the right to confrontation versus the right not to call witnesses or testify in his own behalf.
¶4The Supreme Court has consistently emphasized that the confrontation clause is designed to permit the defendant to cross-examine the witnesses against him. To say that a defendant has a right to cross-examine witnesses implies that the State must endeavor to elicit its evidence in the form of direct testimony before resorting to out-of-court, videotaped statements, i.e., it should be the State’s duty to examine them in the form of direct examination.
¶5This broader notion of confrontation is not only consistent with Supreme Court caselaw but also serves an important procedural purpose mentioned previously.
¶6Certainly, it is beyond question that the duty is upon the State to prove each element of the charged offense beyond a reasonable doubt, and it is beyond question that an accused enjoys the presumption of innocence. But Art. 38.071, supra, simply commands the presence of the victim, leaving to the accused the joyous opportunity of calling the victim to the stand, thereby thwarting the public policy behind the statute, and almost guaranteeing his [the accused’s] own conviction in the process.
¶7While critics may say that a right to remain passive is not a constitutional right at all, it seems to this writer that such a doctrine is firmly imbedded in the Fifth Amendment right that “no person shall be compelled in any criminal case to be a witness against himself ...” U.S. Constitution, Amend. V and in the right of the *330accused to “not be compelled to give evidence against himself, ...” Texas Const., Art. I, Sec. 10.
¶8With these observations, I join the judgment of the Court.
¶9dissenting.
¶10When the members of this Court promulgated and adopted the rules of evidence in December of 1985, to go into effect on September 1, 1986, we expressly included within the statements which are not hearsay in nature the videotape statement made by a child victim under Article 88.071, V.A. C.C.P. See Tex.R.Crim.Ev.Rule 801(e)(1)(D). Today, a majority of the Court decides that this same statute is unconstitutional both facially and in its application, without making any reference to or analyzing the statute in terms of Rule 801, supra.
¶11The crux of the majority decision is that a criminal defendant’s federal and state constitutional rights to confrontation and due process are impermissibly infringed by a statute too broad in scope which forces a defendant co choose between calling the child and inflaming the jury or waiving cross-examination. Today’s opinion may be characterized as a dangling carrot held out to the Legislature, enticing them to attempt to fashion a more narrow procedure, affecting only certain types of cases, and not run afoul of our judicial stamp of disapproval. Given the broad brush wielded by the majority, however, it is apparent that no future statute will be allowed to survive absent a procedure which allows contemporaneous cross-examination to be made at the time the child is interviewed on tape.
¶12I embrace the concept that the opportunity for cross-examination lies as a cornerstone of the right of confrontation and that it is the opportunity for confronting an adverse witness at trial that is the cornerstone issue. See Pennsylvania v. Ritchie, — U.S.-, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), and cases cited therein. I cannot agree that Article 38.071, supra, interpreted along with the Court’s own rules of evidence, violates either principles of confrontation or due process.
¶13Confrontation in the most basic sense requires that witnesses be present at trial and that the defendant be permitted to have the opportunity to cross-examine them. See Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Mattox v. United States, 156 U.S. 237, 5 S.Ct. 337, 39 L.Ed. 409 (1895); Garcia v. State, 210 S.W.2d 574 (Tex.Cr.App.1948). In other words, and as the majority notes, “by requiring an accuser’s presence in court the opportunity of cross-examination is necessarily attained.” Article 38.071, Section 2, supra, satisfies this requirement by providing that the child will be available to testify. The majority responds that availability is not enough; that the hearsay nature of the videotaped statement lacks crucial “indicia of reliability.” See Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); Nelson v. O’Neil, 402 U.S. 622, 91 S.Ct. 1723, 29 L.Ed.2d 222 (1971); California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970).
¶14At first blush it does appear that the Legislature intended to create a new hearsay exception, and if used in lieu of live testimony, such is admittedly the nature of the videotaped statement. The hearsay nature of these statements in such a setting does not render them inadmissible, however, for the simple reason that the declar-ant is available to testify at trial. Where the declarant is available for purposes of cross-examination, the Supreme Court of the United States has consistently found hearsay evidence admissible, reasoning that the opportunity to cross-examine the declarant about the content of the out of court statements sufficiently tests the reliability of those statements. See Kentucky v. Stincer, 631 U.S.-, 107 S.Ct. 2658, 96 L.Ed.2d-(1987); Chambers v. Mississippi, supra; Nelson v. O’Neil, supra; California v. Green, supra.
¶15A much different situation exists in the instant case. The complaining witness testified, albeit after the videotape was played for the jury. Under Rule 801(e)(1), supra, the videotaped statement is not hearsay. That rule reads in pertinent part:
*331“Rule 801.
“(e) Statements which are not hearsay. A statement is not hearsay if:
“(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is … (D) taken and offered in accordance with Article 38.071 of the Texas Code of Criminal Procedure, ...”
¶16Article 38.071, supra, standing alone, requires only that the child-victim be available to testify if her hearsay statement is admitted; our rules of evidence provide for admission of the child’s prior taped statements as non-hearsay where the child actually does testify.
¶17It would appear clear that in adopting Rule 801(e)(1)(D), supra, this Court has already seen fit to construe Article 38.071, supra, in a manner which recognizes the statute’s facial validity while requiring that certain due process requirements be met before the statute in its application will also pass constitutional muster. Thus, in the instant case, the statement was admissible as non-hearsay because the declarant testified at trial, was subject to cross-examination by defense counsel regarding the statement, and the statement was taken and offered in accordance with Article 38.-071, supra.
¶18We, therefore, come full circle, back to the crucial issue of confrontation. The majority notes that Article 38.071, supra, requires the declarant to be made available, then remarks that the State’s argument that the confrontation requirement is satisfied vis a vis this availability appears “persuasive until one notices the collateral procedural consequences of such action” (emphasis supplied), to wit: bolstering of the unimpeached videotaped statement by use of the child’s live testimony.
¶19Given the fact that appellant took the stand, denying the allegatiops and attempting to cast doubt on the child’s credibility, I would not hold the rebuttal testimony improper. Too, the majority has not up to this moment addressed the fact that the videotaped interview was properly admissible, as it was introduced at trial, under the auspices of our own rules of evidence.
¶20This Court has the obligation not to act as a super-legislature, substituting our opinion for that of the second branch of government. We have, instead, the responsibility to construe statutes in a constitutional manner where possible. Ex parte Granviel, 561 S.W.2d 503 (Tex.Cr.App. 1978); Broyles v. State, 552 S.W.2d 144 (Tex.Cr.App.1977). If the majority of this Court is concerned with fundamental due process concerns and with meeting its judicial responsibilities, the option of a savings construction of Article 38.071, supra, remains. It is a simple matter to require the State to call the child-declarant before playing the videotape, thus preserving what the majority views as the defendant’s right to remain passive as well as any and all far-flung rights of confrontation. Absent a savings construction, the members of the Court today ignore both the power of the Legislature to change rules of evidence and our own prior interpretation of Article 38.-071 as shown by Rule 801(e)(1), both supra. See Werner v. State, 711 S.W.2d 639 (Tex. Cr.App.1986); Gross v. State, 165 Tex.Cr. R. 463, 308 S.W.2d 54 (1958). For these reasons, I respectfully dissent.